Submitted: January 12, 1994
Filed: February 18, 1994
Rebecca E. Mick
Charles R. Bailey
Crandall, Pyles & Haviland Paul L. Weber
Logan, West Virginia Shuman, Annand & Poe
Mary Ellen Griffith Charleston, West Virginia
Bell, Griffith & Warner Attorneys for Appellees
Princeton, West Virginia
Attorneys for Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
"'"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syl., Flowers v. City of Morgantown, 166 W. Va. 92, 272 S.E.2d 663 (1980).' Syl. pt. 2, Sticklen v. Kittle, 168 W. Va. 147, 287 S.E.2d 148 (1981)." Syllabus, Fass v. Nowsco Well Service, Ltd., 177 W. Va. 50, 350 S.E.2d 562 (1986).
In this appeal, the appellant and plaintiff below,
Rebecca D. Owen, seeks to set aside the January 21, 1993, order of
the Circuit Court of Mercer County that dismissed her complaint
based on the defendants' motion to dismiss for failure to state a
cause of action under Rule 12(b)(6) of the West Virginia Rules of
The complaint filed by Ms. Owen stated that she was
employed by the Mercer County Board of Education (Board) as a
teacher of behaviorally disordered children and was terminated from
her employment at the end of the school year when her contract was
not renewed. The complaint alleged that Ms. Owen was terminated
because she was a strong advocate for special education students
and for the enforcement of their rights contained in the Education
of Exceptional Children Act, W. Va. Code, 18-20-1, et seq., and the
Education of the Handicapped Act, 20 U.S.C. § 1401 (1988). She
contended that her termination violated the substantial public
policy contained in these statutory provisions and she sought
The individual appellees and defendants below are the
school principal, the supervisor and the director of special
education in Mercer County, the director of personnel, and the county superintendent. The defendants filed a motion to dismiss
based on three grounds. First, they alleged that the complaint
failed to allege facts showing that Ms. Owen was discharged by the
Board. Second, assuming arguendo that she was discharged, the
defendants alleged that the complaint failed to establish that Ms.
Owen was discharged in contravention of a substantial public policy
of West Virginia. Third, even if there were sufficient facts
alleging a wrongful discharge by the Board, the defendants
contended that there were insufficient facts asserted against the
In Fass v. Nowsco Well Service, Inc., 177 W. Va. 50, 350
S.E.2d 562 (1986), we discussed at some length the sufficiency of
a complaint that claimed the plaintiff had been wrongfully
discharged in violation of the rule first established in the
Syllabus of Harless v. First National Bank in Fairmont, 162 W. Va.
116, 246 S.E.2d 270 (1978):
"The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy [principle], then the employer may be liable to the employee for damages occasioned by this discharge."
The complaint in Fass was dismissed on a Rule 12(b)(6) motion. We found it to be quite general and stated "there are no specific statements alleging what precipitated the discharge, other than the fact that the appellants 'stopped to eat and relax.'" 177 W. Va. at 53, 350 S.E.2d at 565. We recognized in the Syllabus of Fass that a review of the pleadings on a Rule 12(b)(6) dismissal is to be done in a liberal fashion:
"'"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syl., Flowers v. City of Morgantown, 166 W. Va. 92, 272 S.E.2d 663 (1980).' Syl. pt. 2, Sticklen v. Kittle, 168 W. Va. 147, 287 S.E.2d 148 (1981)."
However, notwithstanding this rule, we concluded in Fass
that the complaint totally lacked any specificity of facts that
would support a Harless claim and rendered its dismissal under Rule
12(b)(6) appropriate. In the present case, the complaint contained
only the conclusionary statement that "Plaintiff was wrongfully and
deliberately fired . . . for unlawful reasons in violation of
substantial public policies of the State of West Virginia and state
and federal law, including, but not limited to, the Education of
Exceptional Children Act, West Virginia Code §18-20-1, et seq., and
the Education of the Handicapped Act, 20 USCS § 1401." It contains
no specific facts which identify the event or policy. Under Fass,
the dismissal was proper.
Therefore, the judgment of the Circuit Court of Mercer
County is affirmed.